A research project of Vident Partners

Who publishes this, and who pays for it →
The Long-Term Care Standards ProjectPressure injuries, falls, staffing, and the record — sourced to primary authority.

The federal staffing floor is gone. The standard of care is not.

42 CFR Part 483, the surveyor guidance underneath it, the federal claim and survey data, and the controlling case law — mapped for the attorney who has to prove or disprove that harm to a resident was avoidable. Written to be equally usable by a family's counsel and a facility's counsel.

Read the standardsRequest a consultation
Published byVident Partners — expert witness referral, since 2005
Anchored byAl Vangura Jr., M.S., CPSI · Nicholas A. Alfonso, M.D.
References41 primary sources, every URL checked

The Long-Term Care Standards Project is an independent reference on what federal law, state licensure, and recognized clinical practice actually require of a nursing home, assisted living residence, or memory care community before, during, and after harm to a resident — pressure injuries, falls and elopement, malnutrition and dehydration, sepsis, medication error, abuse and neglect, and the staffing and ownership questions underneath all of them. It is written to be equally usable by the family's counsel and the facility's counsel, because a standard only one side trusts is not a standard.

Where this stands

The regulatory floor moved down. The duty did not.

About 1.2 million people live in the 14,700 nursing homes in the United States on a given day, across 1.6 million licensed beds, and 72.4 percent of those facilities are for-profit. The easy story about them is that abuse is exploding. The data does not support that story, and an expert who leads with it gets dismantled. Antipsychotic use among long-stay residents fell 40.6 percent between the fourth quarter of 2011 and the second quarter of 2025 — from 23.9 percent to 14.2 percent — on CMS's own quality measure. A 2023 systematic review and meta-analysis of eighteen prospective nursing home studies found that fall incidence generally decreased from 1998 to 2021. And the most consequential regulatory event of the last two years ran the other way entirely: the federal minimum staffing standard was vacated by two district courts, suspended by statute until September 30, 2034, and formally repealed by CMS effective February 2, 2026.

The true story is harder and considerably more useful. The regulatory floor moved down; the duty did not. The Nursing Home Reform Act still requires a facility to provide services that attain or maintain “the highest practicable physical, mental, and psychosocial well-being of each resident,” and every quality-of-care requirement in 42 CFR Part 483 stands untouched. Exposure keeps climbing regardless: in CNA's study of aging services liability claims closed between January 1, 2021 and December 31, 2023, resident falls and pressure injuries alone accounted for 63.2 percent of closed claims, and the average total incurred on a resident abuse claim in skilled nursing rose 45.7 percent, to $375,338. The record on which those claims are tried is also less reliable than it looks: in September 2025 HHS-OIG reported that facilities failed to report 43 percent of falls with major injury and hospitalization in required resident assessments, and that the facilities publishing the lowest fall rates were the least likely to have reported them.

What actually decides these matters is narrower than the rhetoric on either side, and CMS wrote the test itself. In the surveyor guidance for pressure injuries, a harm is “avoidable” if the facility failed to evaluate the resident's clinical condition and risk factors, define and implement interventions consistent with professional standards of practice, monitor and evaluate their impact, or revise them as appropriate — and “unavoidable” if it did all four. Assess, plan, implement, revise. That same four-verb structure governs decline in activities of daily living, loss of range of motion, and nutritional status, each carrying its own express exception for what the resident's clinical condition made inevitable. Half the answers that test produces favor the facility. That is why it is worth publishing plainly.

This Center is anchored by two Vident Partners experts who answer the half of these cases that nursing testimony is least equipped to reach. Al Vangura Jr., M.S., CPSI, is a forensic biomechanist with an M.S. in Bioengineering from the University of Pittsburgh and nearly forty years in product design, development, and testing — including twenty-five in medical devices — retained on more than 400 cases split evenly between plaintiff and defense and qualified to testify twenty-nine times across thirteen states on injury mechanism, fall analysis, assistive and patient-handling equipment, and warnings. Nicholas A. Alfonso, M.D., is a fellowship-trained orthopedic trauma surgeon and Assistant Professor of Orthopedics at the University of Colorado Anschutz School of Medicine, with more than twenty-six peer-reviewed publications on fracture fixation, limb salvage, and fracture-related infection — the clinical endpoint of both the hip fracture after a fall and the osteomyelitis under a Stage 4 sacral wound. Whether the event described can produce the injury found, and what that injury then required, are the two questions that most often decide the number.

The scale

What the record shows

Each figure below is reported with the source that produced it and the period it covers. Numbers describing a population are not findings about any individual case.

14,700

nursing homes in the United States in 2022, holding 1.6 million licensed beds and roughly 1.2 million residents on a given day, per the National Center for Health Statistics. 72.4 percent are for-profit. These are the biennial National Post-acute and Long-term Care Study figures and cover certified nursing homes only — assisted living and memory care are counted separately and are regulated by state licensure rather than by 42 CFR Part 483.[30, 31]

No federal floor

The May 2024 minimum staffing rule — 0.55 RN, 2.45 nurse aide, and 3.48 total nurse staffing hours per resident day, plus a 24/7 onsite RN — was vacated at summary judgment by two district courts, suspended by section 71111 of Public Law 119-21 until September 30, 2034, and repealed by CMS at 90 FR 55687 effective February 2, 2026. There is currently no federal numeric staffing minimum for long-term care facilities.[11, 12, 13]

63.2%

of closed aging services professional liability claims were resident falls and pressure injuries, in CNA's 12th-edition claim study of claims closed January 1, 2021 through December 31, 2023 (indemnity payments under $10,000 excluded). Overall average total incurred rose 3.8 percent to $259,443; resident abuse claims in skilled nursing rose 45.7 percent to $375,338; elopement averaged $303,883 and medication error $306,373. CNA cautions that the dataset spans the pandemic era and should not be used to project future trends.[32]

43%

of falls with major injury and hospitalization among Medicare-enrolled nursing home residents were not reported in required resident assessments between July 2022 and June 2023, per HHS-OIG report OEI-05-24-00180, issued September 11, 2025. OIG found that “nursing homes with the lowest fall rates on Care Compare were the least likely to report the falls we examined.” An earlier OIG study of August 2011 discharges found that 33 percent of Medicare skilled nursing residents experienced an adverse event or temporary harm within 35 days, and that physician reviewers judged 59 percent of those events preventable.[28, 29]

23.9% → 14.2%

antipsychotic use among long-stay nursing home residents, fourth quarter 2011 to second quarter 2025 — a 40.6 percent decline on CMS's own MDS-based quality measure, which excludes residents diagnosed with schizophrenia, Huntington's disease, or Tourette syndrome. CMS states plainly that clinical indications for these medications exist and that it “does not expect that the national prevalence of antipsychotic medication use will decrease to zero.”[27]

128% / 94%

mean and median annual nursing staff turnover, calculated from 492 million payroll-verified nurse shifts across 15,645 facilities (Health Affairs, 2021). CMS now publishes a turnover measure of its own from Payroll-Based Journal data, and the daily staffing file for the specific dates in a case is public and downloadable — which makes actual staffing on the shift at issue a matter of record rather than argument.[26, 33]

The standards

What the law and the record actually require

Eleven questions that decide long-term care matters, answered from the controlling authority and the surveyor guidance underneath it. Every assertion carries a numbered citation to the source.

The duty: “highest practicable”

The Nursing Home Reform Act of 1987 is codified for Medicare at 42 U.S.C. § 1395i-3 and for Medicaid at § 1396r. It requires a facility to “provide services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, in accordance with a written plan of care.” The regulations restate the principle twice. Section 483.24 makes quality of life “a fundamental principle that applies to all care and services provided to facility residents.” Section 483.25 does the same for quality of care and requires that residents “receive treatment and care in accordance with professional standards of practice, the comprehensive person-centered care plan, and the resident's choices.” Read that last clause carefully: it imports the outside clinical standard into the federal requirement, and it makes the facility's own care plan a measure of the facility's own conduct.[1, 2, 3, 4, 5]

Avoidable and unavoidable: the four questions CMS actually asks

CMS defines both words in Appendix PP, the surveyor guidance to Part 483. “Avoidable” means the resident developed a pressure ulcer or injury and the facility did not do one or more of the following: evaluate the resident's clinical condition and risk factors; define and implement interventions that are consistent with resident needs, resident goals, and professional standards of practice; monitor and evaluate the impact of the interventions; or revise the interventions as appropriate. “Unavoidable” means the resident developed one even though the facility did all four. That is a four-question test, and it is not confined to skin. Section 483.24(a) uses the identical construction for decline in activities of daily living “unless circumstances of the individual's clinical condition demonstrate that such diminution was unavoidable,” § 483.25(c) uses it for range of motion, and § 483.25(g)(1) uses a parallel clause for nutritional status. Most long-term care matters are decided inside those four verbs.[3, 4, 7]

Pressure injuries: a stage describes tissue, not time

Staging categorizes depth of tissue loss. Stage 1 is intact skin with a localized, non-blanchable area of erythema; Stage 2 is partial-thickness loss presenting as a shallow open ulcer or a serum-filled blister; Stage 3 is full-thickness loss where adipose is visible but fascia, muscle, and bone are not exposed; Stage 4 is deep, full-thickness loss with exposed or directly palpable muscle, tendon, ligament, or bone. A deep tissue pressure injury is “persistent, non-blanchable deep red, maroon, or purple discoloration” of intact or non-intact skin, and it can declare itself well after the causative insult. A stage is a description of tissue at one moment. It is not a clock, not a dosimeter of neglect, and not by itself an indictment — § 483.25(b)(1)(i) says in terms that a resident “does not develop pressure ulcers unless the individual's clinical condition demonstrates that they were unavoidable.” The question is what the record shows about risk assessment, offloading, moisture, nutrition, and reassessment before the stage existed.[4, 7, 8]

Falls, supervision, and a hole in the data

No regulation forbids a fall. Section 483.25(d) requires that “the resident environment remains as free of accident hazards as is possible” and that “each resident receives adequate supervision and assistance devices to prevent accidents” — a reasonableness standard, not strict liability. On elopement, Appendix PP is equally direct: “there must be sufficient staff and supervision to meet the resident's needs and staff must be vigilant in order to respond to alarms in a timely manner. Alarms do not replace necessary supervision.” Falls are common and, by the best available synthesis, becoming less so: a 2023 meta-analysis of eighteen prospective nursing home studies put pooled fall incidence at 43 percent of residents (95% CI 38–49) and found by meta-regression that incidence generally decreased from 1998 to 2021. What has not improved is the record. HHS-OIG reported in September 2025 that facilities failed to report 43 percent of falls with major injury and hospitalization among Medicare-enrolled residents between July 2022 and June 2023, and that “nursing homes with the lowest fall rates on Care Compare were the least likely to report the falls we examined.” An MDS-derived fall rate is a reporting artifact before it is a safety measure.[4, 7, 28, 34]

Nutrition, hydration, and what comes after

Section 483.25(g) requires that a resident “maintains acceptable parameters of nutritional status, such as usual body weight or desirable body weight range and electrolyte balance, unless the resident's clinical condition demonstrates that this is not possible or resident preferences indicate otherwise,” and “is offered sufficient fluid intake to maintain proper hydration and health.” The operative verb is offered. The duty is to assess, offer, monitor, and respond — not to guarantee intake against a competent refusal or an end-stage disease. Prevalence is real and method-dependent: a meta-analysis using the Mini Nutritional Assessment placed malnutrition among nursing home residents at 17.5 percent (95% CI 14.3–20.6), while a systematic review of nineteen studies found dehydration prevalence ranging from 0.8 to 38.5 percent depending on how it was measured. The downstream consequence is what gets litigated: 14 percent of infection-related emergency department visits by nursing home residents were classified as severe sepsis, against 1.9 percent of visits by non-residents, with in-hospital mortality of 37 percent versus 15 percent. Two adjacent duties usually decide those cases. Section 483.80 requires an infection prevention and control program with written standards, surveillance, an antibiotic stewardship program, and a designated infection preventionist. And § 483.10(g)(14) requires the facility to immediately inform the resident, consult the attending physician, and notify the resident's representative of a significant change in physical, mental, or psychosocial status. When a sepsis claim is tried, the fight is almost always about when the change was recognized and who was told.[4, 6, 36, 37, 38, 40]

Staffing in 2026: date it, do not assume it

The final rule published May 10, 2024 at 89 FR 40876 set minimums of 0.55 registered nurse, 2.45 nurse aide, and 3.48 total nurse staffing hours per resident day, plus a registered nurse onsite 24 hours a day, 7 days a week. Two district courts vacated those provisions at summary judgment: American Health Care Association v. Kennedy, 777 F. Supp. 3d 691 (N.D. Tex. 2025), on major-questions grounds, and Kansas v. Kennedy (N.D. Iowa, June 18, 2025). Section 71111 of Public Law 119-21, signed July 4, 2025, bars CMS from implementing, administering, or enforcing them until September 30, 2034. CMS then repealed them outright at 90 FR 55687, effective February 2, 2026, restoring the prior text. What binds today is what bound before: § 483.35 requires “sufficient nursing staff with the appropriate competencies and skills sets,” licensed nurses on a 24-hour basis, a designated charge nurse on each tour of duty, a registered nurse “for at least 8 consecutive hours a day, 7 days a week,” and a full-time director of nursing. And § 483.71 — untouched by the repeal — still requires a documented facility-wide assessment of the resources necessary to care for the resident population, reviewed at least annually. An expert who anchors a 2026 staffing opinion to 3.48 hours per resident day is citing a rule that no longer exists. The facility's own assessment is the number that does.[9, 10, 11, 12, 13]

Abuse, neglect, and the two-hour clock

Section 483.12 gives every resident the right to be free from abuse, neglect, misappropriation of property, and exploitation, “including but not limited to freedom from corporal punishment, involuntary seclusion and any physical or chemical restraint not required to treat the resident's medical symptoms,” and forbids employing anyone found guilty of abuse by a court or entered on a state nurse aide registry for it. Separately, section 1150B of the Social Security Act, 42 U.S.C. § 1320b-25, obliges every owner, operator, employee, manager, agent, or contractor of a covered facility to report any reasonable suspicion of a crime against a resident to the Secretary and to law enforcement — “immediately, but not later than 2 hours after forming the suspicion” where the events resulted in serious bodily injury, and within 24 hours where they did not — on penalty of a civil money penalty of up to $200,000, rising to $300,000 where the failure exacerbates the harm. Prevalence estimates are uncomfortable in both directions: a 2019 systematic review and meta-analysis found 64.2 percent of institutional staff admitted to elder abuse in the prior year, while resident-reported rates by subtype were psychological 33.4 percent, physical 14.1 percent, financial 13.8 percent, neglect 11.6 percent, and sexual 1.9 percent.[14, 15, 35]

Medication errors: the five percent rule and the significant error

Section 483.45(f) is unusually numeric for Part 483. A facility must ensure that its “medication error rates are not 5 percent or greater” and that “residents are free of any significant medication errors.” CMS defines a medication error as preparation or administration not in accordance with the prescriber's order, the manufacturer's specifications, or “accepted professional standards and principles,” and a significant medication error as “one which causes the resident discomfort or jeopardizes his or her health and safety.” Two things follow that both sides get wrong. A facility-level error rate below 5 percent is not a defense to a significant error in one resident: these are two separate requirements, cited at F759 and F760. And the observed error rate is derived from a surveyor's direct observation of a sample of passes on survey days, so it measures that observation window and not the year.[7, 16]

Arbitration in the admission agreement

Pre-dispute binding arbitration agreements in long-term care admission packets are lawful. CMS banned them in 2016, was enjoined, and reversed course in the final rule at 84 FR 34718, effective September 16, 2019. The conditions, now codified at 42 CFR § 483.70(m), are strict: a facility “must not require” signing “as a condition of admission to, or as a requirement to continue to receive care at, the facility”; the agreement must be explained in a form, manner, and language the signer understands; it must provide for a neutral arbitrator and a venue convenient to both parties; it “must explicitly grant the resident or his or her representative the right to rescind the agreement within 30 calendar days of signing it”; and it may not contain language discouraging communication with federal, state, or local officials, including surveyors and the State Long-Term Care Ombudsman. The Supreme Court has twice cleared state-law obstacles: Marmet Health Care Center v. Brown (2012) held West Virginia's categorical bar on pre-dispute arbitration of nursing home personal-injury and wrongful-death claims preempted by the Federal Arbitration Act, and Kindred Nursing Centers L.P. v. Clark (2017) struck Kentucky's clear-statement rule for powers of attorney as singling arbitration out for disfavored treatment. What is left to litigate is ordinary contract law — capacity, agency, unconscionability, and who actually signed.[17, 18, 19, 20]

What a deficiency and a star rating actually are

Both get offered as though they were findings about the standard of care. Neither is. A deficiency is a surveyor's determination of noncompliance with a federal certification requirement, cited from a sample at a point in time; its most severe tier, immediate jeopardy, is defined as “a situation in which a recipient of care has suffered or is likely to suffer serious injury, harm, impairment or death” as a result of that noncompliance. The health inspection star rating is explicitly a forced distribution. CMS “bases Five-Star quality ratings in the health inspection domain on the relative performance of facilities within a state,” awarding five stars to “the top 10 percent,” two to four stars to “the middle 70 percent of facilities … with an equal number (approximately 23.33 percent) in each rating category,” and one star to “the bottom 20 percent.” Every state produces a bottom 20 percent no matter how good its facilities are. The public deficiency, provider, and payroll-based staffing datasets are worth pulling in every case; what they establish is what a surveyor found and how the facility was actually staffed, and their admissibility is a question of state law.[22, 23, 24, 25, 26]

Ownership, and the section 1983 question

In Health and Hospital Corporation of Marion County v. Talevski (2023), the Supreme Court held 7-2 that the Federal Nursing Home Reform Act's provisions on unnecessary chemical restraint and predischarge notice “unambiguously confer individual federal rights enforceable under § 1983.” Read the facts with the holding. Section 1983 reaches action under color of state law, and the Talevski facility was county-owned; NCHS puts for-profit ownership at 72.4 percent of nursing homes, so for most defendants the claim remains state-law negligence and the federal requirements come in, if at all, as evidence of the standard. Ownership still matters to the merits: an analysis of Medicare data from 2005 to 2017 associated private equity ownership of nursing homes with a roughly 10 percent increase in short-term mortality, and attributed it in part to declines in nurse availability per patient and in compliance with federal and state care standards. One further ownership-side protection is statutory and frequently overlooked: 42 U.S.C. § 1395i-3(b)(1)(B) requires a quality assessment and assurance committee and provides that “a State or the Secretary may not require disclosure of the records of such committee” except as to the committee's own compliance.[1, 21, 30, 39]

A one-star rating is not a finding about care. It means the bottom twenty percent of that state — and by construction, every state has one.

Where it comes up

Matters that turn on these standards

  • Pressure injury and wound claims — avoidability, staging, offloading, nutrition, and reassessment — for a resident's family and for the facility alike
  • Fall and fall-injury claims: risk assessment, intervention selection, supervision, and whether the mechanism described can produce the fracture actually found
  • Elopement and unsafe wandering, including alarm reliance, egress control, wander-risk assessment, and the adequacy of the post-elopement response
  • Malnutrition, dehydration, unplanned weight loss, and disputes over enteral feeding, therapeutic diets, and honoring a resident's refusal
  • Sepsis, urinary tract infection, and pneumonia claims turning on failure to recognize, escalate, or transfer — and on whether transfer would have changed the outcome
  • Medication error, polypharmacy, and chemical restraint matters, including antipsychotic prescribing without a documented clinical indication
  • Resident-on-resident altercation and staff-on-resident abuse claims: hiring, registry and background screening, supervision, investigation, and section 1150B reporting timelines
  • Wrongful death and survival actions arising from any of the above, and the damages proof peculiar to a plaintiff with a limited remaining life expectancy
  • Understaffing and corporate or institutional negligence claims — the facility assessment, budget and census, agency-staff reliance, and ownership structure
  • Motions to compel arbitration under an admission-agreement clause: the signer's authority, the 30-day rescission right, capacity, and unconscionability
  • Regulatory and enforcement matters — immediate jeopardy citations, civil money penalties, denial of payment for new admissions, informal dispute resolution, and termination
  • Assisted living and memory care claims, where 42 CFR Part 483 does not apply and the governing standard is state licensure plus the community's own written policies

The bar

What to require of an expert in these matters

The same standard applies to the experts who anchor this Center. It is published so counsel can hold anyone — including us — to it.

  1. Operating experience inside a long-term care facility at the level in dispute — a director of nursing, administrator, or medical director who has actually signed the assessments, care plans, and plans of correction at issue, not only studied them.
  2. Current or recent practice in the setting. Acuity rose, lengths of stay fell, and agency staffing spread between 2015 and 2026. An opinion built on the nursing home of a decade ago is an opinion about a different building.
  3. The discipline to name which standard governs. Federal Part 483 requirements, state licensure regulations, the facility's own written policies, and general professional nursing standards are four distinct sources that do not always agree. An expert who blurs them will not survive cross-examination.
  4. Wound credentialing where skin is the issue — a certified wound care clinician who can stage from serial photographs and measurements, explain why a deep tissue injury declares itself when it does, and concede that unavoidable injuries exist, because CMS says they do.
  5. A separate expert for mechanism and for treatment. Whether a described fall can produce the fracture found is a biomechanics question; whether that fracture was then managed to standard is an orthopedic one. Neither is a nursing question, and asking one witness to carry all three is how sound cases come apart.
  6. A records-first methodology stated in writing before any opinion is formed: the MDS assessments, the care plan and every revision to it, treatment and medication administration records, weight and intake logs, wound measurements and photographs, incident reports, nurse and aide assignment sheets, and the payroll-based staffing data for the actual days in question.
  7. A documented testimony history on both sides of the “v.”, with prior Daubert and Frye challenges and their outcomes disclosed. In a field this thick with repeat plaintiff and repeat defense witnesses, an expert retained only ever by one side is an exhibit for the other.
  8. Willingness to write the concession into the report. Rule 702(d) requires that an opinion “reflects a reliable application of the principles and methods to the facts of the case.” An expert who cannot identify which harms in a given record were unavoidable has not applied CMS's own method.

Anchor experts

How the injury happened, and what the injury cost.

Al Vangura Jr., M.S., CPSIAl Vangura Jr., M.S., CPSIForensic Biomechanics Expert · University of Pittsburgh (Bioengineering)
M.S. Bioengineering, Pitt · B.S. Biomechanics, Penn State · CPSI Certified

A forensic biomechanics specialist with nearly 40 years of product development experience, 400+ cases retained, and testimony accepted in 13 states across county, state, and federal courts. Key expert in a $19 million jury verdict.

Injury causation and mechanismSlip, trip and fall analysisProduct liability and defectMotor vehicle accident reconstructionFull profile, publications and testimony history →
Nicholas A. Alfonso, M.D.Nicholas A. Alfonso, M.D.Assistant Professor of Orthopedics, University of Colorado Anschutz School of Medicine
M.D. · Board-Certified Orthopedic Trauma · Fellowship-Trained · AOTrauma Faculty

A fellowship-trained orthopedic trauma surgeon at the University of Colorado with 26+ peer-reviewed publications. Board-certified in orthopedic trauma, specializing in pelvic and acetabular fractures, bone infections, and limb salvage procedures.

Orthopedic trauma surgeryPelvic and acetabular fracturesFracture-related infectionsLimb salvage proceduresFull profile, publications and testimony history →

Profiles, publication lists, and testimony histories are maintained on each expert’s Vident Partners page. Appearing here is not an endorsement of any opinion an expert may offer in a particular matter.

In the directory

Related expert witness specialties

These specialty pages live in the Vident Partners expert directory. This Center does not duplicate them.

Medical & Healthcare

Nursing Home & Long-Term Care

Expert directory →

Medical & Healthcare

Nursing Standards

Expert directory →

Medical & Healthcare

Geriatric Medicine

Expert directory →

Medical & Healthcare

Legal Nurse Consultant

Expert directory →

Medical & Healthcare

Life Care Planning

Expert directory →

Medical & Healthcare

Infectious Diseases

Expert directory →

Writing

Published, and in preparation

Already published in Vident Partners Insights.

Published

Medical institutional standard of care and liability for breach, independent of respondeat superior liability.

Marty Aisenberg · November 28, 2023

Published

Healthcare provider liability for the negligence of an independent contractor – Apparent agency

Marty Aisenberg · March 7, 2019

Published

Hospital institutional liability for the negligence of contract physicians.

Marty Aisenberg · April 22, 2024

Published

Kentucky Supreme Court reemphasizes the requirement of expert testimony on causation in medical malpractice cases; res ipsa doesn’t apply to causation unless it also applies to negligence.

Marty Aisenberg · September 10, 2019

Published

Comparative negligence in the context of medical malpractice – expert testimony is essential.

Marty Aisenberg · December 28, 2021

Planned for this Center. These are commissioned outlines, not published pages — there is nothing to read yet, and we would rather say so than link you somewhere that does not exist.

Not yet published

Primer

Avoidable, Unavoidable, and the Four Questions CMS Actually Asks

The F686 test, verbatim — and why the same four verbs govern weight loss, range of motion, and ADL decline just as much as skin.

Not yet published

The Data

Forty-Three Percent: What the OIG Found About Nursing Home Fall Reporting

The 2025 federal audit that turned a public quality measure into a reporting artifact, and what it does to MDS-based proof on both sides.

Not yet published

Staffing

There Is No Federal Staffing Minimum. Here Is What There Is.

Vacated twice, suspended to 2034, then repealed — and the facility assessment that quietly became the operative number.

Not yet published

For the Defense

Reading a Survey Deficiency the Way the Surveyor Wrote It

Scope and severity, the sample, the plan of correction, and the difference between a certification finding and the standard of care.

Not yet published

Damages

Proving Damages for a Resident With Two Years to Live

Life expectancy, pain and suffering, statutory elder-abuse remedies, and the arithmetic both sides are actually arguing about.

Questions counsel ask

Answers, with the citation attached

Does a pressure injury mean the facility was negligent?

No. The regulation itself says a resident “does not develop pressure ulcers unless the individual's clinical condition demonstrates that they were unavoidable,” and CMS defines unavoidable as the facility having evaluated the resident's condition and risk factors, defined and implemented interventions consistent with professional standards, monitored and evaluated their impact, and revised them as appropriate. The dispute is almost never whether the wound exists. It is whether those four things happened, and the record either shows them or it does not.[4, 7]

Is there a federal minimum staffing ratio we can measure the facility against?

Not as of 2026. The 2024 rule's 0.55, 2.45, and 3.48 hours per resident day and its 24/7 registered nurse requirement were vacated by two district courts, suspended by statute until September 30, 2034, and repealed by CMS effective February 2, 2026. What binds is § 483.35 — sufficient staff with appropriate competencies, licensed nurses on a 24-hour basis, an RN for at least 8 consecutive hours a day 7 days a week, and a full-time director of nursing — measured against the facility's own § 483.71 assessment of what it determined it needed. The payroll-based staffing file for the specific dates is public and is usually more probative than any ratio.[9, 10, 11, 12, 13, 26]

The facility is rated one star. Isn't that proof of substandard care?

No, and arguing it invites a damaging cross-examination. CMS rates the health inspection domain on relative performance within a state: the top 10 percent receive five stars, the middle 70 percent receive two to four stars in roughly equal thirds, and “the bottom 20 percent receive a one-star rating.” Every state produces a bottom 20 percent regardless of the absolute quality of its facilities. A rating is a screening tool for where to look. It is not a finding about the care a particular resident received.[22]

Can we bring the federal nursing home rights under 42 U.S.C. § 1983?

Sometimes. In Health and Hospital Corporation of Marion County v. Talevski (2023) the Court held 7-2 that the Nursing Home Reform Act's unnecessary-restraint and predischarge-notice provisions “unambiguously confer individual federal rights enforceable under § 1983.” But § 1983 requires action under color of state law, and the facility in Talevski was county-owned. With 72.4 percent of nursing homes in for-profit ownership, most defendants are not state actors, and for them the claim remains state-law negligence with the federal requirements offered, if at all, as evidence of the standard.[21, 30]

The family signed an arbitration clause at admission. Is it enforceable?

Usually the fight is not about arbitration itself. Pre-dispute binding arbitration agreements have been permitted since the 2019 final rule, and the Supreme Court has struck down state rules singling them out — Marmet (2012) and Kindred (2017). What remains are the conditions CMS imposed at 42 CFR § 483.70(m): it could not be required as a condition of admission or continued care, it had to be explained in a form and language the signer understood, and it had to grant a right to rescind within 30 calendar days of signing. Ordinary contract defenses also survive, and whether the signer actually held authority to bind the resident is the question that decides most of these motions.[17, 18, 19, 20]

Which expert do we actually need?

Usually more than one, scoped so they do not overlap. A nursing or administration expert establishes what the facility's assessment, care plan, and policies required and whether staff delivered them. A geriatrician or medical director addresses clinical judgment, prognosis, and whether a decline was the disease or the care. A wound clinician addresses staging and avoidability. A biomechanist addresses whether the event described can produce the injury found, and an orthopedic surgeon addresses how that injury was then managed and what it cost. Asking one witness to carry all of it is the most common avoidable error in these cases.[41]

References

Every figure on this page, traced to its source

41 primary sources. Each URL was checked before publication and is rechecked whenever this page is revised.

  1. 1.42 U.S.C. § 1395i-3 — Requirements for, and assuring quality of care in, skilled nursing facilities (Nursing Home Reform Act); “highest practicable” duty at (b)(2) and quality assessment and assurance committee record protection at (b)(1)(B). https://www.law.cornell.edu/uscode/text/42/1395i-3Legal Information Institute, Cornell Law School
  2. 2.42 U.S.C. § 1396r — Requirements for nursing facilities under Medicaid (Nursing Home Reform Act, Medicaid counterpart). https://www.law.cornell.edu/uscode/text/42/1396rLegal Information Institute, Cornell Law School
  3. 3.42 C.F.R. § 483.24 — Quality of life; decline in activities of daily living “unless … unavoidable”. https://www.law.cornell.edu/cfr/text/42/483.24Legal Information Institute, Cornell Law School
  4. 4.42 C.F.R. § 483.25 — Quality of care; skin integrity and pressure ulcers (b)(1), mobility and range of motion (c), accidents and supervision (d), assisted nutrition and hydration (g). https://www.law.cornell.edu/cfr/text/42/483.25Legal Information Institute, Cornell Law School
  5. 5.42 C.F.R. § 483.21 — Comprehensive person-centered care planning, including the baseline care plan and comprehensive care plan requirements. https://www.law.cornell.edu/cfr/text/42/483.21Legal Information Institute, Cornell Law School
  6. 6.42 C.F.R. § 483.10 — Resident rights, including notification of changes, access to records, and communication with officials and the Ombudsman. https://www.law.cornell.edu/cfr/text/42/483.10Legal Information Institute, Cornell Law School
  7. 7.State Operations Manual, Appendix PP — Guidance to Surveyors for Long Term Care Facilities; F686 avoidable/unavoidable pressure ulcer definitions, F689 wandering and elopement guidance, F759/F760 medication error definitions. https://www.cms.gov/medicare/provider-enrollment-and-certification/guidanceforlawsandregulations/downloads/appendix-pp-state-operations-manual.pdfCenters for Medicare & Medicaid Services
  8. 8.Pressure Injury — StatPearls: NPIAP staging definitions for Stage 1 through Stage 4, unstageable, and deep tissue pressure injury. https://www.ncbi.nlm.nih.gov/books/NBK553107/NCBI Bookshelf, National Library of Medicine
  9. 9.42 C.F.R. § 483.35 — Nursing services, as restored effective February 2, 2026: sufficient staff, licensed nurses on a 24-hour basis, charge nurse each tour, registered nurse for at least 8 consecutive hours a day 7 days a week, full-time director of nursing. https://www.law.cornell.edu/cfr/text/42/483.35Legal Information Institute, Cornell Law School
  10. 10.42 C.F.R. § 483.71 — Facility assessment; documented facility-wide determination of the resources necessary to care for the resident population, reviewed at least annually (unaffected by the 2025 staffing repeal). https://www.law.cornell.edu/cfr/text/42/483.71Legal Information Institute, Cornell Law School
  11. 11.Medicare and Medicaid Programs; Repeal of Minimum Staffing Standards for Long-Term Care Facilities, 90 Fed. Reg. 55687 (Dec. 3, 2025) [CMS-3442-IFC, RIN 0938-AV25], effective February 2, 2026; recites the vacaturs in American Health Care Association v. Kennedy, 777 F. Supp. 3d 691 (N.D. Tex. 2025) and Kansas v. Kennedy (N.D. Iowa June 18, 2025). https://www.govinfo.gov/content/pkg/FR-2025-12-03/pdf/2025-21792.pdfOffice of the Federal Register (via GovInfo)
  12. 12.Medicare and Medicaid Programs; Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting, 89 Fed. Reg. 40876 (May 10, 2024) — the source of the 0.55 RN, 2.45 NA, and 3.48 total HPRD figures and the 24/7 RN requirement. https://www.govinfo.gov/content/pkg/FR-2024-05-10/pdf/2024-08273.pdfOffice of the Federal Register (via GovInfo)
  13. 13.Public Law 119-21 (enacted July 4, 2025), § 71111 — moratorium barring implementation, administration, or enforcement of the §§ 483.5 and 483.35 minimum staffing standards until September 30, 2034. https://www.govinfo.gov/content/pkg/PLAW-119publ21/pdf/PLAW-119publ21.pdfU.S. Government Publishing Office (GovInfo)
  14. 14.42 C.F.R. § 483.12 — Freedom from abuse, neglect, and exploitation; restraint restrictions and prohibition on employing individuals with abuse findings. https://www.law.cornell.edu/cfr/text/42/483.12Legal Information Institute, Cornell Law School
  15. 15.42 U.S.C. § 1320b-25 — Reporting to law enforcement of crimes occurring in federally funded long-term care facilities (Elder Justice Act § 1150B); 2-hour and 24-hour reporting deadlines and civil money penalties up to $200,000 / $300,000. https://www.law.cornell.edu/uscode/text/42/1320b-25Legal Information Institute, Cornell Law School
  16. 16.42 C.F.R. § 483.45 — Pharmacy services; drug regimen review, medication error rates not 5 percent or greater, and freedom from significant medication errors. https://www.law.cornell.edu/cfr/text/42/483.45Legal Information Institute, Cornell Law School
  17. 17.42 C.F.R. § 483.70 — Administration; binding arbitration agreement requirements at paragraph (m), including the prohibition on requiring signature as a condition of admission and the 30-calendar-day rescission right. https://www.law.cornell.edu/cfr/text/42/483.70Legal Information Institute, Cornell Law School
  18. 18.Medicare and Medicaid Programs; Revision of Requirements for Long-Term Care Facilities: Arbitration Agreements, 84 Fed. Reg. 34718 (July 18, 2019) [CMS-3342-F], effective September 16, 2019 — repeal of the 2016 prohibition and the transparency conditions adopted in its place. https://www.govinfo.gov/content/pkg/FR-2019-07-18/pdf/2019-14945.pdfOffice of the Federal Register (via GovInfo)
  19. 19.Marmet Health Care Center, Inc. v. Brown, 565 U.S. 530 (2012) (per curiam, decided February 21, 2012) — West Virginia's categorical bar on pre-dispute arbitration of nursing home personal-injury and wrongful-death claims is preempted by the Federal Arbitration Act. https://www.law.cornell.edu/supremecourt/text/11-391Legal Information Institute, Cornell Law School
  20. 20.Kindred Nursing Centers L.P. v. Clark, 581 U.S. 246 (2017) (decided May 15, 2017) — Kentucky's clear-statement rule for powers of attorney violates the FAA by singling out arbitration agreements for disfavored treatment. https://www.law.cornell.edu/supremecourt/text/16-32Legal Information Institute, Cornell Law School
  21. 21.Health and Hospital Corporation of Marion County v. Talevski, 599 U.S. 166 (2023) (decided June 8, 2023, 7-2) — FNHRA's unnecessary-restraint and predischarge-notice provisions confer individual federal rights enforceable under 42 U.S.C. § 1983; the defendant facility was county-owned. https://www.law.cornell.edu/supremecourt/text/21-806Legal Information Institute, Cornell Law School
  22. 22.Design for Care Compare Nursing Home Five-Star Quality Rating System: Technical Users' Guide (July 2026) — health inspection ratings set on relative within-state performance: top 10 percent five stars, middle 70 percent in approximately 23.33 percent bands, bottom 20 percent one star. https://www.cms.gov/medicare/provider-enrollment-and-certification/certificationandcomplianc/downloads/usersguide.pdfCenters for Medicare & Medicaid Services
  23. 23.QSO-19-09-ALL — Revisions to Appendix Q, Guidance on Immediate Jeopardy; definition of immediate jeopardy and the three-part key elements framework for surveyors. https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/QSO19-09-ALL.pdfCenters for Medicare & Medicaid Services, Quality, Safety & Oversight Group
  24. 24.Nursing Homes Including Rehab Services — Health Deficiencies dataset (survey deficiency records by facility, F-tag, scope and severity, and survey date). https://data.cms.gov/provider-data/dataset/r5ix-sfxwCenters for Medicare & Medicaid Services, Provider Data Catalog
  25. 25.Nursing Homes Including Rehab Services — Provider Information dataset (ownership type, certified beds, average residents per day, star ratings, staffing hours, turnover). https://data.cms.gov/provider-data/dataset/4pq5-n9pyCenters for Medicare & Medicaid Services, Provider Data Catalog
  26. 26.Payroll-Based Journal Daily Nurse Staffing — auditable, payroll-verified daily staffing hours by facility and job category, submitted quarterly and published by CMS. https://data.cms.gov/quality-of-care/payroll-based-journal-daily-nurse-staffingCenters for Medicare & Medicaid Services (data.cms.gov)
  27. 27.National Partnership to Improve Dementia Care in Nursing Homes: Antipsychotic Medication Use Data Report — 23.9 percent in 2011Q4 falling 40.6 percent to 14.2 percent in 2025Q2; CMS statement that it does not expect prevalence to reach zero. https://www.cms.gov/files/document/data-report-national-partnership-improve-dementia-care-nursing-homes-antipsychotic-medication-use.pdfCenters for Medicare & Medicaid Services
  28. 28.Nursing Homes Failed To Report 43 Percent of Falls With Major Injury and Hospitalization Among Their Medicare-Enrolled Residents, OEI-05-24-00180 (issued September 11, 2025; study period July 2022–June 2023). https://oig.hhs.gov/reports/all/2025/nursing-homes-failed-to-report-43-percent-of-falls-with-major-injury-and-hospitalization-among-their-medicare-enrolled-residents/Office of Inspector General, U.S. Department of Health and Human Services
  29. 29.Adverse Events in Skilled Nursing Facilities: National Incidence Among Medicare Beneficiaries, OEI-06-11-00370 (February 2014) — 33 percent of residents experienced an adverse event or temporary harm within a stay of 35 days or fewer; physician reviewers judged 59 percent preventable. Sample drawn from August 2011 discharges. https://oig.hhs.gov/oei/reports/oei-06-11-00370.pdfOffice of Inspector General, U.S. Department of Health and Human Services
  30. 30.FastStats — Nursing Home Care: 14,700 nursing homes, 1.6 million licensed beds, 72.4 percent for-profit ownership, and 1.2 million residents (2022). https://www.cdc.gov/nchs/fastats/nursing-home-care.htmNational Center for Health Statistics, CDC
  31. 31.Biennial Overview of Post-acute and Long-term Care in the United States — National Post-acute and Long-term Care Study (NPALS) web tables, the source for the FastStats nursing home figures. https://www.cdc.gov/nchs/npals/webtables/overview.htmNational Center for Health Statistics, CDC
  32. 32.Aging Services Professional Liability Claim Report, 12th Edition — claims closed January 1, 2021 through December 31, 2023; falls and pressure injuries 63.2 percent of closed claims; average total incurred $259,443 overall, $375,338 for skilled nursing resident abuse, $303,883 elopement, $306,373 medication error. https://www.cna.com/sites/default/files/assets/CNA-Aging-Services-Claim-Report-12th-Edition.pdfCNA Insurance
  33. 33.Gandhi A, Yu H, Grabowski DC. High Nursing Staff Turnover In Nursing Homes Offers Important Quality Information. Health Aff (Millwood). 2021;40(3):384–391 — 492 million nurse shifts across 15,645 facilities; mean 128 percent and median 94 percent annual turnover. https://pubmed.ncbi.nlm.nih.gov/33646872/Health Affairs / PubMed
  34. 34.Shao L, Shi Y, Xie XY, Wang Z, Wang ZA, Zhang JE. Incidence and Risk Factors of Falls Among Older People in Nursing Homes: Systematic Review and Meta-Analysis. J Am Med Dir Assoc. 2023;24(11):1708–1717 — pooled fall incidence 43 percent (95% CI 38–49) across 18 prospective studies; meta-regression shows incidence generally decreased from 1998 to 2021. https://pubmed.ncbi.nlm.nih.gov/37433427/Journal of the American Medical Directors Association / PubMed
  35. 35.Yon Y, Ramiro-Gonzalez M, Mikton CR, Huber M, Sethi D. The prevalence of elder abuse in institutional settings: a systematic review and meta-analysis. Eur J Public Health. 2019;29(1):58–67. https://pubmed.ncbi.nlm.nih.gov/29878101/European Journal of Public Health / PubMed
  36. 36.Paulis SJC, Everink IHJ, Halfens RJG, Lohrmann C, Schols JMGA. Prevalence and Risk Factors of Dehydration Among Nursing Home Residents: A Systematic Review. J Am Med Dir Assoc. 2018;19(8):646–657 — prevalence 0.8 to 38.5 percent across 19 studies depending on measurement method. https://pubmed.ncbi.nlm.nih.gov/30056949/Journal of the American Medical Directors Association / PubMed
  37. 37.Cereda E, et al. Nutritional status in older persons according to healthcare setting: A systematic review and meta-analysis of prevalence data using MNA. Clin Nutr. 2016;35(6):1282–1290 — malnutrition prevalence in nursing homes 17.5 percent (95% CI 14.3–20.6). https://pubmed.ncbi.nlm.nih.gov/27086194/Clinical Nutrition / PubMed
  38. 38.Ginde AA, Moss M, Shapiro NI, Schwartz RS. Impact of older age and nursing home residence on clinical outcomes of US emergency department visits for severe sepsis. J Crit Care. 2013;28(5):606–611 — severe sepsis in 14 percent of infection-related visits by nursing home residents versus 1.9 percent for non-residents; in-hospital mortality 37 percent versus 15 percent. https://pmc.ncbi.nlm.nih.gov/articles/PMC3770757/Journal of Critical Care / PubMed Central
  39. 39.Gupta A, Howell ST, Yannelis C, Gupta A. Owner Incentives and Performance in Healthcare: Private Equity Investment in Nursing Homes. NBER Working Paper 28474 (later published, Review of Financial Studies, 2024) — private equity ownership associated with an approximately 10 percent increase in short-term mortality of Medicare patients, 2005–2017. https://www.nber.org/papers/w28474National Bureau of Economic Research
  40. 40.42 C.F.R. § 483.80 — Infection control; infection prevention and control program, antibiotic stewardship, and the infection preventionist requirement. https://www.law.cornell.edu/cfr/text/42/483.80Legal Information Institute, Cornell Law School
  41. 41.Federal Rule of Evidence 702, as amended effective December 1, 2023 — preponderance showing to the court and the Rule 702(d) reliable-application requirement. https://www.law.cornell.edu/rules/fre/rule_702Legal Information Institute, Cornell Law School

Working a long-term care matter?

Tell us the question at issue and we will identify qualified experts — for a resident's family and for a facility alike. The consultation is complimentary and carries no obligation. Requests made here are tagged to The Long-Term Care Standards Project.

Request a consultationWho publishes this